Category: HR Strategy

Recent changes to New York State law regarding prevention of sexual harassment will require employers to revisit existing policies to comply with newly-mandated provisions, as summarized in our lead story from Takeaways, Spring 2018. But looking beyond the state law, one key lesson to be derived from the #MeToo movement is that workplace policies prohibiting harassment must also emphasize power disparities. The common thread in so many of the #MeToo-type incidents reported in the media is the use of, or perceived threat to use, power to objectify or demean someone. This power-based focus is not just limited to gender; it plays out in interactions between individuals of different races, national origin, religions, sexual orientation and other protected classes, and thus it should be emphasized in any policy prohibiting harassment, not just those pertaining to sexual harassment.

Power disparities also are not limited to supervisor-subordinate relationships. Consider a new hire being shown the ropes by an employee with five or ten years of experience. Those individuals may be peers on an organization chart, but there still is a power disparity that can cause the new hire to feel uncomfortable objecting to offensive behavior.

Other times, the behavior at issue may not fall into the category of actionable harassment based on a protected characteristic. Sometimes the behavior is just demeaning and abusive on an individual or group level.

Regardless of whether the behavior would give rise to a legal claim, the nature of such conduct can be corrosive in the work environment. It can undermine morale, loyalty and productivity. One step in addressing that is to add a clear, express statement in your anti-harassment policy that you will not tolerate the use of, or perceived threat to use, power to objectify or demean someone based on a protected class. Employers that want to go further than the law can build on that with an anti-bullying or workplace conduct policy emphasizing that actual or perceived misuse of power, including abusive behavior, is not acceptable and grounds for disciplinary action.

Employment policies need to comply with legal requirements, but employers have the option of holding employees to a higher standard of behavior. Updating policies to incorporate lessons learned from #MeToo is an important step in that process.

Beginning this fall, employers in New York State will be required to provide interactive harassment prevention training to employees. This is not a new concept – such training has been mandated for years in California, Connecticut and Maine – but the scope, nature and frequency of the training are quite different from what other states have legally required. Consider:

All private employers are covered – other states only mandate employers of a certain size to provide such training; New York’s law applies to every private sector employer;

All employees are covered – other states only mandate training for those at a supervisor level or above; New York’s law covers employees at every level of the organization;

It must be done annually – other states require biannual training;

It needs to cover legal rights and remedies with regard to sexual harassment – other states take a more holistic approach to discussing all forms of unlawful harassment, discrimination and retaliation; a prudent New York State employer would do the same and look beyond just sexual harassment;

There is no minimum duration – other states mandate two hours of training; New York sets no time limit, but mandates interactivity and a list of subjects to be covered.

The Department of Labor and the Division of Human Rights are currently working to develop a model of the type of training program they expect employers to implement.

The legal landscape with regard to who must be paid for their work, and what and how they must be paid is collectively shifting as a result of recent developments from the U.S. Department of Labor (DOL) and the federal courts. A recent decision by the Second Circuit U.S. Court of Appeals has cleared the way for employers to hire more students as unpaid interns by rejecting a rigid six-factor DOL test that had precluded virtually all unpaid internships. At the same time, though, the DOL has tightened other standards to push many more workers into the classification of employees (not freelancers or independent contractors) and the DOL projects its new proposed regulations on overtime eligibility will annually entitle millions of more employees to overtime pay. Read More

Employers are most vulnerable to employment law claims when their business practices are out of sink with current legal standards. Our top three:

new hire notices,

background check procedures, and

staff classification.

With just a small time investment to check current practices regarding new hire notices and background check procedures, you can save your business many headaches down the road. Depending on the size and nature of your workforce, a review of staff classification may be a lengthier project, but is well worth the investment in reducing your liability exposure. Read More

Pregnant employees, as a protected class, are having their moment in the sun. The United States Supreme Court just held in Young v. United Parcel Service, Inc. that pregnant employees may be legally entitled to accommodation of their pregnancy-related work limitations, even if those limitations do not meet the threshold of a legally-recognized “disability”. Also, for the first time in 25 years, the Equal Employment Opportunity Commission updated its Enforcement Guidance on Pregnancy Discrimination in July 2014 to declare that pregnant employees should receive the same types of accommodations, for example modified tasks, alternative assignments, or leave, as an employer accords to disabled employees who have requested a reasonable accommodation.

As I discussed earlier this year, in 3 Hyper-Local Laws Employers Can’t Afford to Ignore, various states and municipalities (including New York City) have recently passed laws providing enhanced protection to pregnant employees. Bills offering similar protections are pending in other state legislatures.

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Disclaimer: These pages are for informational purposes only. None of the information is intended to replace legal advice from a qualified attorney and does not create an attorney-client relationship.